Last Updated on June 19, 2025

As social media continues to shape how we connect, communicate and present ourselves, many employers are turning to social platforms to gather additional insights on potential hires through social media background checks. While the idea of scanning a candidate’s online presence might seem like a convenient way to vet cultural fit or verify qualifications, it does come with serious legal and ethical considerations. Because of this, it brings up some questions: how can employers remain compliant when incorporating social media into their hiring process?

What Is a Social Media Background Check?

A social media background check involves reviewing a candidate’s public profiles and posts on platforms such as LinkedIn, Facebook, X (formerly Twitter), Instagram, TikTok and others to assess their character, professionalism or cultural alignment with your organization. Employers may look for red flags like discriminatory language, illegal behavior, or inconsistency with a candidate’s application or résumé.

These checks can be done in-house or outsourced to third-party screening companies, which often use software tools to compile and assess digital footprints. However, regardless of how they’re conducted, employers must follow applicable laws and best practices to mitigate risk.

The Risks of Social Media Background Checks

1. Discrimination Claims:
Reviewing social media profiles can expose employers to protected class information such as race, religion, age, disability, sexual orientation or pregnancy status. Making employment decisions based on this information-knowingly or not- can result in discrimination claims under federal laws like Title VII of the Civil Rights Act or the Americans with Disabilities Act (ADA).

2. Invasion of Privacy:
Candidates may perceive social media checks as intrusive, especially if employers request log-in credentials from candidates (which is illegal in many states). Even viewing public profiles can lead to concerns over privacy, as candidates may not want employers delving too far into their personal lives.

3. Inconsistency and Bias:
Without standardized procedures, social media checks can result in inconsistent hiring practices or implicit bias. Some candidates have limited digital footprints or curate their presence more professionally, leading to uneven assessments.

State Laws on Social Media Background Checks

While federal law does not specifically address social media checks, many states have enacted laws to limit employer access to applicants’ personal social media accounts. However, if an employer uses a third-party screening company to conduct a background check, such as MyHRScreens, the Fair Credit Reporting Act (FCRA) applies. Among other things, this means the employer must obtain written consent from the candidate before the check is conducted. Additionally, if any adverse action (such as rejecting the applicant) is taken based on the report, the employer must provide a pre-adverse action notice, a copy of the report and a summary of rights under the FCRA. The candidate must also be given an opportunity to dispute any inaccurate or misleading information.

There are currently 28 states who have regulations surrounding social media background checks*. These states are: Arkansas, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Louisiana, Maine, Maryland, Michigan, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oklahoma, Oregon, Rhode Island, Tennessee, Utah, Vermont, Virginia, Washington, West Virginia and Wisconsin.

*Note: While each state’s law wording may vary- some include investigative exceptions- all prohibit requiring usernames/passwords or forced access to private accounts. Employers may still review public social media content. Please note that all state laws are subject to change.

Tips for Employers

1. Create a Written Policy
   Document when, how and why social media checks are conducted through a written policy. Ensure consistency across all candidates to avoid disparate impact claims.
2. Wait Until After the Interview
   Perform social media reviews later in the hiring process to reduce the risk of unconscious bias early on.
3. Use Third-Party Vendors Carefully
   Partner with an FCRA-compliant screening provider like MyHRScreens, which ensures only job-relevant, legally obtained information is reported, helping you stay compliant and avoid unnecessary risk.
4. Focus on Job-Related Content
   Avoid making decisions based on protected class information. Instead, look for job-related red flags like threats of violence or evidence of illegal activity.
5. Don’t Request Access to Private Accounts
   Never ask for log-in credentials (which is illegal in many states) or require candidates to accept friend requests from hiring managers.
6. Train Your Hiring Team
   Ensure anyone involved in the hiring process understands how to interpret social media findings appropriately and lawfully. Document any red flags to ensure that the findings remain compliant with federal and state regulations and non-discriminatory.

Remaining Compliant

Social media background checks can offer candid insights, but they can also open the door to serious legal and ethical challenges, if not handled correctly. Employers must remain vigilant, consistent and compliant when exploring a candidate’s digital presence. MyHRConcierge can help businesses navigate the evolving landscape of employment law.

MyHRScreens is FCRA certified and offers a comprehensive suite of background screening solutions, including a wide range of industry-specific screening options, drug testing, immunization tracking and more. Need help reviewing your hiring practices? MyHRScreens offers a range of pre-employment screening services. Contact MyHRScreens at 866-899-8970 ext. 118, or klewis@myhrscreens.com.

For more information on how MyHRConcierge can help your organization remain compliant with state and federal regulations, contact us at ccooley@myhrconcierge.com, 855-538-6947 ext. 108. Or, schedule a convenient consultation below: